James Garnett Smith & Anor v Malcolm McCusker QC

[2013] HCASL 144

JAMES GARNETT SMITH & ANOR
v
MALCOLM MCCUSKER QC

[2013] HCASL 144
P22/2013

1. In 1986, the respondent, a barrister, was retained by a solicitor acting for the applicants to provide an advice about the merits of an action the applicants had brought against a bank.  In March 1989, the respondent provided the advice, which was to the effect that the applicants had no reasonable prospects of success.

2. In 1995, the applicants commenced an action against the respondent, claiming he was negligent in the preparation of the advice.  The claim proceeded to trial in the Supreme Court of Western Australia in 2010.  At trial, the applicants asserted that the respondent had failed to discern the applicants' true complaint against the bank (said to be that the bank failed to give proper advice) and to provide the advice in a timely manner.

3. On 8 April 2011, the Supreme Court (Martin CJ) dismissed the case.  Martin CJ held that no material had been provided to the respondent that would have suggested the possibility of a claim against the bank based upon a failure to give proper advice.  Even if there had been, this would not have altered the respondent's advice that the claim against the bank was hopeless.  Thus, the applicants would not be able to establish that the respondent had caused them to suffer loss.  Martin CJ accepted that the respondent's delay in preparing the advice was negligent, but held that the applicants had not suffered any significant loss as a result.

4. On 6 March 2013, the Court of Appeal dismissed an appeal from this decision.  Pullin JA, with whom Newnes JA agreed, observed that none of the applicants' 74 grounds of appeal alleged any error of law or fact.  Pullin JA could find no appealable error in the reasons of Martin CJ.  McLure P thought that Martin CJ had erred in his analysis of the facts, but agreed that the applicants' claim of negligence was not made out.

5. The application for special leave to appeal to this Court raises grounds not advanced below and makes various unparticularised assertions.  No special leave question is articulated.  An appeal to this Court would enjoy no prospects of success.  Special leave is refused.

6. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
4 September 2013 P.A. Keane